Robert Nozick’s Political Philosophy

Robert Nozick (1938–2002) was a renowned American philosopher
who first came to be widely known through his 1974 book, Anarchy,
State, and Utopia
(1974),[1]
which won the National Book Award for Philosophy and Religion in 1975.
Pressing further the anti-consequentialist aspects of John
Rawls’ A Theory of Justice, Nozick argued that respect for
individual rights is the key standard for assessing state action and,
hence, that the only legitimate state is a minimal state that
restricts its activities to the protection of the rights of life,
liberty, property, and contract. Despite his highly acclaimed work in
many other fields of philosophy, Nozick remained best known for the
libertarian doctrine advanced in Anarchy, State, and
Utopia.

Robert Nozick was born in Brooklyn in 1938 to a Russian Jewish
immigrant family. He earned an undergraduate Philosophy degree from
Columbia University in 1959 and a Ph.D. in Philosophy from Princeton
University in 1963. He taught for a couple of years at Princeton,
Harvard, and Rockefeller Universities before moving permanently to
Harvard in 1969. He became widely known through his 1974
book, Anarchy, State, and Utopia, which shocked the
philosophical world with its robust and sophisticated defense of the
minimal state—the state that restricts its activities to the
protection of individual rights of life, liberty, property, and
contract and eschews the use of state power to redistribute income, to
make people moral, or to protect people from harming themselves.
Nozick went on to publish important works that ranged over
metaphysics, epistemology, the philosophy of science, and
axiology—Philosophical Explanations (1981), The
Examined Life (1989), The Nature of Rationality
(1993), Socratic Puzzles (1997), and Invariances
(2001). Nozick’s always lively, engaging, audacious, and
philosophically ambitious writings revealed an amazing knowledge of
advanced work in many disciplines including decision theory,
economics, mathematics, physics, psychology, and religion. Robert
Nozick died in 2002 from stomach cancer for which he was first treated
in 1994.

As an undergraduate student at Columbia and at least in his early
days as a graduate student at Princeton, Nozick endorsed socialism. At
Columbia, he was a founder of what was to become the local chapter of
Students for a Democratic Society. The major force in his conversion
to libertarian views was his conversations at Princeton with his
fellow philosophy graduate student, Bruce Goldberg. It was through
Goldberg that Nozick met the economist Murray Rothbard who was the
major champion of “individualist anarchism” in the later
decades of the twentieth century (Raico 2002, Other Internet
Resources). Nozick’s encounter with Rothbard and Rothbard’s
rights-based critique of the state (Rothbard 1973 and
1978)—including the minimal state—lead Nozick to the
project of formulating a rights-based libertarianism that would
vindicate the minimal state. There is, however, an intriguing lacuna
in this story. Goldberg himself and the economists whose writings are
often said to have influenced Nozick’s conversion to
libertarianism—F.A. Hayek and Milton Friedman—were not at
all friends of natural rights theory. So, we have no account of why
the libertarianism that Nozick himself adopted came in the form of
natural rights theory (and an associated doctrine of acquired property
rights).

This account of the political philosophy of Robert Nozick is
fundamentally an account of the rights-oriented libertarian doctrine
that Nozick presents in Anarchy, State, and Utopia. That
doctrine is the Nozickean
doctrine.[2]
Nozick never attempted to further develop the views that he expressed
in
ASU,[3]
and he never responded to the extensive critical reaction to those
views. Nozick did seem to repudiate at least some aspects of
the ASU doctrine in The Examined Life and The
Nature of Rationality (Nozick 1989: 286–296). Nozick’s real
or apparent repudiation in these works turned on his doctrine of
symbolic utility which cannot be examined
here.[4]
At later yet points in his life Nozick downplayed his
apparent repudiation of political
libertarianism.[5]
In a 2001 interview, he said:

… the rumors of my deviation (or apostasy!) from libertarianism
were much exaggerated. I think [Invariances] makes clear the
extent to which I still am within the general framework of
libertarianism, especially the ethics chapter and its section on the
“Core Principle of Ethics”. (Sanchez 2001, Other Internet
Resources)

According to that chapter, there are a number of layers of
ethics. The first of these is the ethics of respect which consists of
a set of negative rights. This layer and only this layer may be made
mandatory in any society. “All that any society should
(coercively) demand is adherence to the ethics of respect”
(Nozick 2001: 282).

There are four main topics that most deserve discussion with
respect to Anarchy, State, and Utopia. They are: (1) the
underpinning (if any) and the character and robustness of the moral
rights that constitute the basic normative framework for most
of Anarchy, State, and Utopia; (2) the character and degree
of success of Nozick’s defense of the minimal state against the charge
by the individualist anarchist that “the state itself is
intrinsically immoral” (ASU 51); (3) Nozick’s
articulation and defense of his historical entitlement doctrine of
justice in holdings and his associated critique of end-state and
patterned doctrines of distributive justice, especially John Rawls’
difference principle (as defended in A Theory of Justice);
and (4) Nozick’s argument that utopian aspirations provide a
complementary route to the vindication of the minimal state. Our
discussion of the first two topics focuses on Part I of ASU,
entitled “State-of-Nature Theory or How to Back into a State
without Really Trying”. Our investigation of the third topic,
the historical entitlement doctrine of just holdings and competing
conceptions of distributive justice, focuses on chapter 7,
“Distributive Justice” of Part II of ASU,
“Beyond the Minimal State?” Our discussion of the fourth
topic, the utopian route to the minimal state, focuses on chapter 10,
“A Framework for Utopia”, which is the whole of Part III
of ASU, “Utopia”. Focusing on these four core
topics leaves aside many of Nozick’s rich and intriguing side
discussions.

These moral rights are understood as state of nature rights. That
is, they are rights that precede and provide a basis for assessing and
constraining not only the actions of individuals and groups but also
the conduct of political and legal institutions. These rights also
precede any social contract; they morally constrain the conduct of
individuals, groups, and institutions even in the absence of any
social contract. In Locke’s language, these rights constitute a law of
nature—or an especially important part of a law of
nature—that governs the pre-political and pre-contractual state
of nature (Locke 1690: Second Treatise §6).

Moreover, to possess such a right is not merely to be in some
condition the promotion or maintenance of which is socially
expedient. Part of the message of that opening proclamation is that
there are certain things that may not be done to individuals even if,
by some standard, they are socially optimizing. The rights that
individuals have are moral bulwarks against behavior that promotes
even the most radiant—or apparently radiant—social end.
In addition, these state of nature moral rights are taken to be
negative. They specify types of conduct that may not be done to
individuals rather than types of conduct that must be done for
people.

Finally, since these rights are not granted by institutions,
created by any contractual process, or accorded to individuals for the
sake of advancing some optimal social outcome, if they have any
foundation, that foundation must consist in some morally impressive
fact about the nature of individuals qua individuals. Some
morally impressive fact about the nature of individuals—e.g.,
that they each have ends or projects of their own to which they
rationally devote themselves—must provide others with reason to
not treat them certain ways, e.g., as beings who ought to serve the
ends of others. We shall see that Nozick advances a claim of this sort
in his account of why agents should abide by moral side-constraints in
their conduct toward others.

Recourse to the familiar distinction between claim-rights and
liberty-rights will enable us to be somewhat more precise about the
state of nature rights that Nozick ascribes to each individual.
Liberty-rights are absences of obligations. You have a liberty-right
to scratch your nose as long as you have no obligation not
to. Claim-rights are moral (and enforceable) claims against others to
their acting or not acting in certain ways. You have a claim-right
against others not to be interfered with in the scratching of your
nose if and only if others have an (enforceable) obligation
not to interfere with you in this way. Standardly, when we speak of
rights we are speaking of composites of liberty-rights and
claim-rights. For instance, standardly, your right to scratch your
nose consists in your having no obligation not to do so and others
having (enforceable) obligations not to interfere with your doing
so. Your moral liberty to scratch your nose is morally protected by
your (enforceable) claim against others that they not interfere with
your doing so.

When Nozick asserts that individuals possess pre-political,
pre-contractual moral rights against certain things being done to
them—even for the sake of ends that are or purport to be
socially optimal—he is most obviously ascribing claim-rights to
individuals correlative to which are pre-political and pre-contractual
moral obligations of each agent not to do certain
things to other individuals. Since, all state of nature obligations
(that are rights-correlative and, hence, enforceable) are negative, in
the state of nature individuals are morally at liberty to engage
in any conduct that does not transgress others’ state of
nature claim-rights. Thus, Nozick’s opening proclamation of rights
affirms for each individual extensive liberty-rights—extensive
freedom from obligations, especially positive obligations—that
are systematically protected against interference by moral
claim-rights. It needs to be mentioned that these moral rights are
taken to be people’s baseline rights; they are rights that are subject
to contraction or expansion through an individual’s actions and
interactions. So, e.g., although each individual has a natural right
against all others not to be struck in her nose, each may waive that
right by agreeing to take place in a boxing match, and each may
acquire a liberty-right to strike the other party to the boxing
contract.

It is a commonplace to say that in ASU Nozick provides no
foundation for his affirmation of such Lockean natural rights (Nagel
1975). And, not many pages after Nozick proclaims these rights, he
himself points out that his book provides no “precise theory of
the moral basis of individual rights” (xiv). Nevertheless,
Nozick does have important things to say about the underpinning of
these rights and about their deontic character and their
stringency. Indeed, it is striking that, when Nozick seeks to motivate
his opening affirmation of rights, he starts with the same
understanding and critique of utilitarianism that Rawls offers
in A Theory of Justice when Rawls begins to motivate his
contractarian doctrine. What separates Nozick from Rawls at this very
basic level is a difference in their construal of the implications of
this common critique. Nozick may, in this way, offer as much of a
foundation for adopting his natural rights stance as Rawls offers
in A Theory of Justice for adopting his contractarian
stance.

As is well known, Rawls starts by ascribing to the utilitarian the
claim that the rationality of a certain principle of social choice can
be inferred from the rationality of a certain principle of individual
choice. The principle of individual choice is that, at least if no
other party is affected, it is rational for an individual to incur
costs for herself (or to forego benefits for herself) if doing so will
spare her greater costs (or provide her with greater
benefits). According to Rawls, the utilitarian holds that by parity of
reasoning it is rational for a member of society to incur costs for
herself (or to forego benefits for herself) if doing so will
spare any member of society greater costs (or
provide any member of society with greater benefits). This is
the purported rational principle of social choice. Thus, we get to the
utilitarian conclusion that each agent as a member of society has
reason to maximize the aggregate social good even at the expense of
the individual good of herself (or others).

As is also well-known, Rawls rejects this reasoning on the grounds
that it does not take seriously the separateness and distinctness of
persons. Persons are markedly more separate and distinct from one
another than are the different phases or time-slices of a given
person’s life. Because of this, one cannot proceed from its being
worthwhile for a given person to incur costs for herself in order to
spare herself greater costs to its being worthwhile for a given person
as a member of society to incur costs for herself in order to spare
any member of society greater costs. According to Rawls, only if we
conflate individuals—only if we mistakenly conceive of them as
parts of a single person-like being, will the utilitarian principle of
social choice be on a par with the principle of individual choice
(Rawls 1971: 26–7).

Rawls summarizes his primary case against utilitarianism by
saying,

… if we assume that the correct regulative principle for
anything depends on the nature of that thing, and the plurality of
distinct persons with separate systems of ends is an essential feature
of human societies, we should not expect the principles of social
choice to be utilitarian. (Rawls 1971: 29)

This summation goes well beyond the dismissal of the utilitarian
regulative principle. For it strongly suggests a criterion for
identifying the correct regulative principle (or set of principles)
for the governance of social interaction. Such regulative principles
must differ significantly from the utilitarian principle by being
responsive to or reflective of the plurality of distinct persons with
separate systems of ends. We should note here that what is crucial is
not the bare normatively neutral fact that individuals have separate
systems of ends but, rather that individuals rationally seek to
promote their own ends. It is the rational propriety of each person’s
pursuit her own good that basic regulative principles need to be
responsive to or reflect. Rawls then offers his crucial contractarian
construal of how regulative principles qualify as being responsive to
or reflective of the plurality of persons. According to Rawls, they
so qualify by being principles that all individuals concerned with the
promotion of their own systems of ends would agree to under
circumstances suitable for such agreement.

It is striking that Nozick proceeds through a highly similar
critical treatment of utilitarianism when he asks why persons may not
be violated for the greater social good.

Individually, we each sometimes choose to undergo some pain or
sacrifice for a greater benefit or to avoid a greater harm… In
each case, some cost is borne for the sake of the greater overall
good. Why not, similarly, hold that some persons have to bear some
costs that benefit other persons more, for the sake of the overall
social good? (ASU 32)

Nozick’s response to this question is,

But there is no social entity with a good that undergoes
some sacrifice for its own good. There are only individual people,
different individual people, with their own individual lives. Using
one of these people for the benefit of others, uses him and benefits
the others. Nothing more. What happens is that something is done to
him for the sake of others. Talk of an overall social good covers this
up. (32–3)

Here Nozick makes things too easy for himself by ascribing to the
utilitarian a belief in a social entity—as Rawls makes things
too easy for himself by saying that the utilitarian argument depends
on fusing or conflating persons. For the utilitarian may simply hold
that the best explanation for the rationality of a given person
incurring some cost for herself in order to avoid some greater cost
for herself is the unrestricted rationality of minimizing net costs
(or maximizing net benefits). According to this utilitarian, we do not
have to move from the principle of individual choice to the principle
of social choice. For, we start with the unrestricted rationality of
minimizing costs (or maximizing benefits); and the principle of
individual choice is simply the application of that principle of
social choice to the special case in which there is only one agent who
is also the one subject of benefits and costs.

To counter the contention that, at the outset, practical
rationality calls for the minimization of net costs (or the
maximization of net benefits), Rawls and Nozick need to hold that what
makes it practically rational for a given individual to incur some
cost to herself (or forego some benefit for herself)
is the avoidance of some greater cost to herself (or the
attainment of some greater benefit for herself). They need to
hold that (at least absent further argument) the rational balancing of
costs incurred (or benefits foregone) and costs avoided (or benefits
attained) must take place within lives and not across lives. And this
does seem to be part of the intended force of Rawls’ invocation of a
“plurality of distinct persons with separate systems of
ends”[6] and
of Nozick’s insistence that there are “only individual people,
different individual people, with their own individual lives”
(33). In Nozick this stance is most explicit when he parses “the
fact of our separate existences” as,

… the fact that no moral balancing act can take place among
us; there is no moral outweighing of one of our lives by others so as
to lead to a great overall social good. There is no justified
sacrifice of some of us for others. (33)

Note, however, that this last sentence is ambiguous. It may mean
simply that there is no moral balancing across individuals that
requires individuals to sacrifice for others or that justifies others
in imposing such sacrifices. However, that sentence may also mean that
“no one may be sacrificed for others” (33) in the sense
that those who impose such sacrifices wrong the individuals
who are subjected to those losses. That is, it may also mean that
there is (in Rawls’ terminology) a “correct regulative
principle” that forbids and condemns the imposition of such
sacrifices. It is clear that Nozick intends to assert this further
claim even though he does not explicitly recognize that it is a
further and distinct proposition. For, according to Nozick, one will
not “sufficiently respect and take account of the fact that he
[i.e., any given individual] is a separate person, that his is the
only life he has” (33) unless one morally condemns and eschews
uses of that person—in particular, impositions of losses on that
person for the sake of (what purports to be) the social good.

The “fact of our separate existences” is “the
fact that that no moral balancing act can take place among us”
(because costs and benefits add up within persons’ lives and not
across them). In contrast, the further fact that there are moral
side-constraints against imposing sacrifices on some to serve the
interests of others is a reflection of the “fact of
our separate existences”. We come to the affirmation of those
side-constraints when we sufficiently respect and take account of the
separateness of
persons.[7]
This is what Nozick must mean when he says
that “The moral side constraints upon what we may do…
reflect the fact of our separate existences” (33). The fact of
our separate existences—as Nozick parses that fact—is the
morally impressive fact about the nature of individuals that provides
us with reason to be circumspect in our conduct toward one
another. We respect or honor others as agents with rational ends of
their own not by promoting their ends as we do our own but, rather,
by not sacrificing them to our ends.

If correct regulative principles for social interaction must
sufficiently respect and take account of the plurality of distinct
persons with separate systems of ends, those regulative principles
must not treat persons as means for the attainment of any
(putatively) choice-worthy social outcome. Regulative principles that
endorse the use of persons for the sake of (purportedly)
choice-worthy social outcomes—e.g., the social outcome of there
being a choice-worthy distribution of goods among
individuals—too much resemble the utilitarian regulative
principle. They share the failure of the utilitarian principle to
sufficiently respect and take account of the plurality of distinct
persons with separate systems of ends. Thus, Nozick contends, correct
regulative principles must take the form of moral side constraints
upon what may be done to individuals even for the sake of really
valuable, choice-worthy social outcomes. Rawls reads the willingness
of utilitarianism to impose losses on individuals for the sake of the
aggregate good as a mark of utilitarianism’s failure to recognize the
status of individuals as ends-in-themselves and not merely means to
the ends of others. Nozick follows suit in appropriating this
Kantian language (see Cohen 1995: 238–243). But, contrary to
Rawls, Nozick maintains that the endorsement of the imposition of
sacrifices on individuals for the sake of any (non-trivial)
conception of the social good—even, e.g.,
distribution-sensitive conceptions of the social good—fails to
recognize the status of individuals
as ends-in-themselves.[8]

So, Nozick offers very much the same type of argument for the
existence of some correct regulative principle for social
interaction as Rawls does in A Theory of Justice. The
difference is that Nozick does not hold that the mark of principles
being responsive to or reflective of the fact of our separate
existences is that they would be agreed to by everyone under suitable
agreement circumstances. Rather, he supposes that we can identify
types of treatment of persons as not sufficiently respecting and
taking account of the rationality of individuals pursuing of their own
good without having to appeal to any actual or hypothetical agreement.
In particular, the imposition of sacrifices upon individuals does not
sufficiently take account of their being agents who rationally pursue
their own systems of ends. The key “moral content gotten by this
argument which focuses upon the fact that there are distinct
individuals each with his own life to lead” is that
“sacrificing one person to benefit another” is morally
prohibited (34).

For Nozick, a paradigmatic natural moral right is the right not to
be subjected to (unprovoked) killing. Correlative to this right is the
moral side constraint to which all individuals are naturally subject
not to engage in the (unprovoked) killing of others. As Nozick
understands this right, it forbids A’s (unprovoked) killing
of B even if A can prevent W from
killing X, Y, and Z only by
killing B. Although it may in some sense be less
bad for B to be killed than for X, Y,
and Z to be killed, A remains bound not to
kill B. A may not prevent the wrong that W
will do in killing X, Y, and Z by
killing B. For Nozick, rights express the moral inviolability
of individuals; and B would not be morally
inviolable—nor would any of us be—were B open to
use by A even for the purpose of preventing the violation of
the rights of X, Y, and Z. Not even the
minimization of the violation of the right against being killed can
justify the violation of that right.

According to Nozick, our core reason for abstaining from murder is
not that abstention advances the goal of minimizing murders. Indeed,
if that were our reason to eschew murder, A should not eschew
murdering B if that is the only way that he can
prevent W from murdering X, Y,
and Z. Rather, Nozick’s deontological claim is that the
status that each individual has as an end-in-himself morally
constrains each other agent’s conduct toward those
individuals. Both A and W are morally precluded from
the (unprovoked) killing of B, X, Y,
and Z (and of each other). W triply violates this
side constraint when he kills X, Y, and Z;
but Aabides by this constraint only if he abstains
from killing B—even if A’s killing
of B would (somehow) prevent W’s killing
of X, Y, and Z.

It is often thought that there is something paradoxical about
deontological propositions like the assertion that everyone is bound
to abstain from the (unprovoked) killing of
others.[9] This
thought rests on two standard consequentialist ideas. The first is
that the wrongness of a given sort of action—e.g., (unprovoked)
killing—must derive from the badness of the (typical)
consequences of actions of that sort. The second is that the badness
of the consequences of multiple actions of a given sort can be
aggregated so that (typically) the total badness of the results of a
bunch of wrongful actions of that sort will be greater than the
badness of the results of one action of that sort. For example, the
total badness associated with W’s (unprovoked) killings
of X, Y, and Z will (typically) be greater
than the badness associated with A’s (unprovoked) killing
of B. It follows that it will (typically) be wrong
for A to abstain from killing B if that is the only
way to prevent W’s (unprovoked) killings
of X, Y, and Z. The supposed paradox is
that the wrongfulness of (unprovoked) killing must rest on the
badness of the (typical) results of such killings; but recourse to
the badness of results in the assessment of actions (typically) leads
to the endorsement of (unprovoked) killings in precisely those cases
in which the advocate of deontic constraints wants to insist upon
their wrongfulness. However, the construction of this paradox of
deontology rests firmly upon ideas that Nozick has rejected on his
way to asserting deontic side constraints.

Nozick also provides a further and seemingly more conventional discussion of
the bases for moral constraints in which various lofty capacities that
human beings (usually) possess or are thought to possess are cited. He
mentions being

[S]entient and self-conscious; rational (capable of using abstract
concepts, not tied to responses to immediate stimuli); possessing free
will; being a moral agent capable of guiding its behavior by moral
principles and capable of engaging in mutual limitation of conduct;
having a soul. (48)

To these he adds “the ability to regulate and guide its life
in accordance with some overall conception it chooses to
accept” (49). But, does the presence of these non-moral
features underwrite moral constraints against preventing individuals
from exercising these capacities in their own chosen ways? Nozick
seeks to bolster the significance of these features by contending
that a person can give meaning to his life only by exercising these
capacities in accordance with some overall plan of his own (50). The suggestion is that it is not meaningfulness at large that is crucial for each individual but, rather the meaningfulness for him of the life that arises through his exercise of an overall plan for his life.[10] However, Nozick then asks

why not replace ‘happiness’ with ‘meaningfulness’
within utilitarian theory, and maximize the total
‘meaningfulness’ score of the persons in the
world? (50)

This is surprising. For one would expect that, in accord with his separateness of persons argument, Nozick would say that the import of each individual having a meaningful life as his end is not a utilitarianism of meaningful lives but, rather, side constraints on interference with each individual’s pursuit of a meaningful life of his own.

Nozick’s account of rights takes a surprising turn in his very
complex chapter 4 on “Prohibition, Compensation, and
Risk” (Mack 1981). Employing the language of rights as moral
boundaries, Nozick asks whether all actions that cross boundaries may
be prohibited, i.e., may permissibly be
punished.[11]
His unexpected answer is that not all boundary crossings may be
prohibited. Some boundary crossings are to be allowed—without
the consent of those subject to them—as long as due
compensation is paid to those subjects. Nozick’s
presumption within this chapter is that it does
not follow from B’s having a right
against A to A’s not inflicting
treatment T on B that A’s
inflicting T on A may be prohibited (59). All
that follows from B’s having that right is
that A may not inflict T on B
unless A also duly compensates
B.[12]
All that follows is that B has a claim
against A that A’s infliction of T
on B not leave B’s utility or welfare on net diminished.

We can describe Nozick’s position here by utilizing the now common
distinction between claims that are protected by property rules and
claims that are protected by liability rules (338n6). One’s claim with
respect to some object O is protected by a property rule if
one must be allowed to do as one sees fit with O—as
long as one abides by the applicable side constraints. Others may not
deprive one of one’s choice with respect to O—even if
they also compensate one for the utility or welfare loss of being
precluded from doing as one sees fit with O. In contrast,
one’s claim with respect to O is merely protected by a
liability rule if others may determine (without one’s consent) what is
done with O as long as they duly compensate one for the
associated utility or welfare loss. In chapter 4, Nozick’s
presumption seems to be that all that follows from one’s
having a right is that one has a claim that is protected by a
liability rule.

Of course, it may be impossible or severely difficult
for A to duly compensate B for inflicting
treatment T—as when T consists in
killing B. Moreover, if it is impossible or severely
difficult for A to duly compensate B for a given
boundary crossing, A must not cross that boundary
without B’s consent. The conjunction of the
liability rule claim and the impossibility or difficulty of due
compensation yields (the equivalent of) a property rule claim
for B against A’s imposing T
on B. The further conditions that render due compensation
impossible or difficult boost what would otherwise merely be a
liability rule claim against being subject to T into (the
equivalent of) a property rule claim against being subject
to T. As we see in the next section, Nozick thinks that such
boosting conditions are pervasive. So, one of the things that Nozick
is doing in his intricate chapter 4 is arguing that, even if we start
with the relatively modest liability rule conception of rights, we can
reach the conclusion that most rights have the force of claims that
are protected by property rules.

Perhaps, we ought not to be too surprised by Nozick’s chapter 4
presumption that in themselves rights are merely claims that are
protected by liability rules. For recall the crucial role ascribed to
natural rights within Nozick’s separateness of persons argument. That
role is to provide individuals with moral protection against having
sacrifices (i.e., net losses) imposed upon them. All that rights must
do in order to play this role is to require that all
boundary-crossings be accompanied by due compensation (and that they
not be done if the provision of due accompanying compensation is not
feasible).

However, Nozick’s focus on rights having the role of protecting
individuals from net losses being imposed upon them raised concerns
for him about whether invocations of rights would deliver the strong
anti-paternalism that he
favored.[13]
If rights are in themselves merely
claims against having one’s utility or welfare on net lowered by
certain interferences, then one will have no right against
interferences that on net raise one’s utility or welfare. Arguments
that “will prohibit sacrificing one person to benefit
another” will not themselves deliver “a prohibition on
paternalist aggression” (34). Rights against paternalist
interventions that really do serve interests of the paternalized
party must protect the choices of that party—even choices that
will lower her utility or welfare.

Moreover, the view that rights in themselves are claims protected
by liability rules does not comport well with the overall tone
of Anarchy, State, and Utopia. Nozick does not begin this
work by declaring that there are things that may not be done to
individuals unless, of course, they are duly compensated. Nor
does the liability rule construal of rights fit well with Nozick’s
affirmation of the inviolability of individuals, the Kantian claim
that individuals “may not be sacrificed or used for the
achieving of other ends without their consent” (31,
emphasis added), or the moral sovereignty of individuals (34). Indeed,
at one point Nozick himself says that “a system permitting
boundary crossing, provided compensation is paid, embodies the use
of persons as means…” (71, emphasis added). It
embodies the use of persons as means because it allows such use as
long as the utility or welfare of the used party is not on net
diminished. The provision of due compensation counteracts the imposed
loss of utility or welfare; but it does not counteract the use.

In the next section, we shall focus on Nozick’s use of this
liability rule attenuation of rights in his response to the
anarchist. We should note, however, that after disposing of the
anarchist Nozick reverts to the more robust property rule
understanding of rights. Thus, in chapter 7, on “Distributive
Justice”, Nozick says that,

The central core of the notion of a property rights in X
… is the right to determine what shall be done with X,
the right to choose which of the constrained set of options
concerning X shall be realized or attempted. (171)

To have a right in X is to have a claim protected by a
property rule. Others’ interference with one’s doing as one sees fit
with X is impermissible—even if one is duly compensated
for imposed utility or welfare losses. And Nozick goes on to extend
this property rule construal to people’s rights in themselves and
their labor.

This notion of property helps us understand why earlier theorists
spoke of people as having property in themselves and their labor.
They viewed each person as having a right to decide what would become
of himself and what he would do… (171)

Indeed, in chapter 7, Nozick argues that seizing the fruits of a
person’s labor is impermissible because this involves taking the time
that this person devoted to this labor without that person’s
consent. There is no hint that the taking of that time without that
party’s consent would be permissible if only that party were duly
compensated. There is no hint that the requirement that this
individual consent to any taking depends upon due compensation for
such a taking being impossible or severely difficult.

We should also note that this passage about earlier theorists
speaking of people as having property in themselves is the closest
Nozick ever comes to formulating his own position in terms of a
doctrine of self-ownership. Contrary to common presentations
of Nozick’s doctrine, there is no mention of self-ownership within
his Part I discussion of state of nature
theory.[14]
Throughout Part I, Nozick is content to have his readers fill in the
content of moral side constraints by drawing on their intuitions
that, if there are any moral side constraints, they must include
constraints against (unprovoked) killing, assaulting, maiming,
enslaving. There is, at most, a hint that all of these constraints
can be subsumed under a general constraint against aggression
(34). (It seems, however, that aggression itself requires explication
on the basis of a prior and independent specification of persons’
rights.)

Overall, Nozick maintains that there is something about the
separateness of persons—something about the propriety of each
seeking his own good in his own chosen way—that does not merely
undermine the view that individuals should sacrifice themselves (and
others) for the social good. Beyond that undermining, the separateness
of persons positively supports each individual’s possession of
fundamental, broad, natural, and negative moral claims that hold
against all other agents. What Nozick needs is a clearly articulated
and persuasive transition from each individual having ends of his own
that he is rational to pursue (and, hence, there being no proper moral
balancing across persons) to each individual having a moral
status vis-á-vis others that provides others with reason not
to interfere with his chosen pursuits even in ways that would be on
net beneficial to that individual. Nozick provides material that is
suggestive of this transition but certainly not a compelling case for
it. Nozick also fails to address the hard question of why—except
perhaps to avoid “catastrophic moral horror” (29
footnote*)—rights always trump considerations of personal or social
well-being.

The official purpose of Part I of ASU is to rebut the
individualist anarchist’s claim that no state, not even the minimal,
nightwatchman, state can be
justified.[15]
In this way, Part I is devoted to what
Nozick takes to be the fundamental question of political philosophy,
viz., “whether there should be any state at all”
(4). Nozick seeks to counter the anarchist’s claim by showing how a
minimal state—essentially a state that is limited to the
protection of the rights of person, property, and
contract—could arise without violating rights. At a later point
within this section, we shall have to consider why Nozick focuses
upon whether a minimal state could arise without violating
rights rather than whether a minimal state could function
without violating rights.

Nozick expects that it will take a considerable effort to answer
the individualist anarchist precisely because this form of
anti-statism is itself rooted in the moral rights that Nozick
proclaims. Indeed, immediately following his ascription to individuals
of pre-political, pre-contractual, negative moral rights Nozick tells
us that these rights may so extensively limit the permissible use of
force that no room is left for a morally acceptable
state.

So strong and far-reaching are these rights
that they raise the question of what, if anything the state and its
officials may do. How much room do individual rights leave for the
state? (ix)

To be clear about Nozick’s response, we first need to be clear
about what alternative structure for the protection of rights is
envisioned by the individualist anarchist. Second, we need to clearly
identify the precise challenge that Nozick needs to overcome.

First, then, Nozick and the individualist anarchist agree that it
is one thing for individuals to have rights and another thing for them
to have rights to the protection of their rights. It is one thing to
have a right against others that they not aggress against one; it is
another thing to have rights against others that they protect one
against aggression. Being a positive right, the right to protection
against violations of one’s rights must arise through some special
interaction between the agent who acquires the right and the agent who
acquires the correlative obligation. The most common kind of special
interaction that gives rise to one agent having a positive right
against another is contract. However, the individualist anarchist and
Nozick agree that there has never been any general social contract
whereby individuals at large acquire from one another positive rights
to the protection of their pre-contractual rights. And,
“… tacit consent isn’t worth the paper it’s not written
on” (287). Hence, if people are to acquire rights to have their
rights protected, they must (at least for the most part) go shopping
for them.

Moreover, the individualist anarchist asserts—and Nozick is
strongly disposed to agree—that shoppers for any sort of service
will do best when there is a competitive market in the supply of that
sort of service. Competition among good-willed providers of the
service of rights protection will induce lower prices and/or higher
quality rights protection—including protection against
“outlaw” agencies that seek to assist or protect rights
violators. The interest of good-willed purchasers of rights protection
in non-violent dispute resolution will press competing suppliers of
rights protection to join in agreements that more sharply define the
boundaries of their clients and establish procedures for resolving
disputes among them. Any protective agency that is not part of a
network of established conflict diminishing agreements and resolution
procedures will be at a huge competitive disadvantage. Nozick refers
to the resulting network as the dominant protective association; and
he treats the question of whether the minimal state can arise without
violating rights as a matter of whether such a dominant protective
association can develop into a minimal state without violating
rights.

Second, anarchists like Rothbard assert that the creation and
maintenance of even the minimal state will violate rights in two
fundamental ways. First, even the minimal state will arise through
and sustain itself through imposed taxation. Second, even the minimal
state will arise through and sustain itself through the coercive
suppression or control of competing protective agencies. However,
the minimal state that Nozick seeks to defend is simply not subject
to the first of these challenges. For, despite some ill-chosen
language that suggests the contrary (26–7), Nozick’s minimal
state does not impose taxation—even to fund its rights
protective
activities.[16]
Nozick’s minimal state does prohibit
individuals who interact with its clients from becoming clients of
competing agencies (that are not subject to supervision and
constraint by the minimal state). However, it does not require
anyone to subscribe to its services. Principled anarchists and even
individuals who hope to free-ride on the minimal state’s overall
suppression of rights
violations[17]
are morally at liberty to take their
chances.

However, to be a state—even a minimal state—an
institution has to have some sort of monopoly on the use of coercive
force over a sufficiently large territory or set of people. To rise to
statehood within a given territory or with respect to a set of people,
a protective agency must fairly successfully fulfill its aspiration to
be the suppressor of other actors who seek to engage in rights
violating force and (at least) to be the controller of other actors
who seek to engage in rights protecting force. Hence, to rise to
statehood, a protective agency must either shut down or exercise
substantial control over other non-outlaw agencies. In short,
it seems that it must act toward its non-outlaw competitors in ways
that Nozick would declare to be impermissible among competitors in the
delivery of any other sort of service. Nozick must attempt to meet the
anarchist’s second challenge by arguing that the dominant protective
agency’s establishment of a monopoly in protective services differs
markedly from the standard suppression or control of competitors.

Before considering how and how successfully Nozick meets this
challenge, we need to take note of a questionable preliminary move on
his part. When Nozick mentions the agreements that competing agencies
would enter into in order to assure their prospective clients smooth
and non-violent dispute resolution, he speaks of the emergence of
“a system of appeals courts and agreed upon rules of
jurisdiction and the conflict of laws”. He acknowledges that the
emergence of this system allows for the continued operation of
“different agencies”. Yet he then says that the result is
“one unified federal judicial system of which they [presumably
the various agencies] all are components” (16). On the basis of
this description of the outcome of the networking process Nozick
allows himself to speak of the rise of a dominant protective
association that is united and federal.

This language seems to paper over the continued existence of
“different agencies” which may well compete with one
another not merely in terms of prices but also in terms of the
packages of protective services they offer in response to diverse
consumer demand for such services. So Nozick faces a problem even if
he succeeds in showing that the confederation of agencies
that emerges from such networking may permissibly eliminate its
non-outlaw competitors. For, there may still be too much
competition among the confederates that make up the dominant
association for it to qualify as a state (Childs 1977 and Mack
1978).

Putting that initial problem aside, one possible way for Nozick to
meet the anarchist’s challenge is to maintain that the dominant
protective association will eliminate its
competitors without using coercive force. Perhaps something
about the production and delivery of rights protection makes that
enterprise a natural monopoly. Nozick seems to be pursuing
this route when he asks and answers the question, “Why would a
virtual monopoly arise in this market without the government
intervention that elsewhere creates and maintains it?”
(17). His answer is that the value of the protective services offered
by any agency will increase with the size of its
clientele—presumably because disputes among clients of the same
agency will be more cheaply or readily resolved than disputes among
clients of competing agencies. So, clients of competing agencies will
migrate to the dominant association and that migration will increase
the incentive for yet others to follow the same
path.[18]

However, this claim about the propensity for “virtual”
monopoly to arise within the rights protection business is only
intended by Nozick to explain the emergence of a dominant protective
association; it is not intended to explain that association’s
permissible suppression or control of its remaining non-outlaw
competitors. Nozick accepts the anarchist contention that, for an
agency to rise to or sustain itself as a state, it must suppress or
control actual (or potential) non-outlaw competitors. To meet the
anarchist’s challenge, Nozick sets out to show how the dominant
association’s suppression or control of non-outlaw competitors is not
a violation of the rights of those competitors—even though they
are non-outlaws.

Nozick’s case relies upon the surprising attenuation of rights that
we noted in the previous section, viz., the idea that in themselves
rights are claims that are protected by liability rules. Absent
further conditions that make due compensation for infringements
impossible or severely difficult, rights are merely claims to be duly
compensated for losses imposed by certain interferences. Given this
construal of rights, the basic structure of Nozick’s response to the
anarchist is quite simple. The rights of non-outlaw protective
agencies (and non-outlaw independent self-protectors) to engage in
their chosen procedures are merely claims that are protected by
liability rules. Hence, those procedures may be interfered with as
long as those subject to this interference are duly compensated. The
anarchist is correct in saying that these non-outlaw agencies and
individuals have rights against being interfered with; but he is
mistaken in thinking that these rights forbid that interference.

Of course, a further premise is needed for this argument. This is
that it will not be impossible or severely difficult to duly
compensate those non-outlaw agencies and individuals for interference
with their own protective activities and, hence, their claims against
such interference do not acquire the force of claims protected by
property rules. (If the claims do acquire that force, the anarchist
correctly condemns the dominant association’s interference with those
agencies or individuals.) To support this further premise, Nozick
needs to survey the conditions that do made it impossible or severely
difficult to supply due compensation for boundary crossings. A
boundary will have the force of a claim protected by a property rule
if and only if such a condition is present. Much of the intricacy (and
opacity) of ASU’s chapter 4 resides within this survey.

There are some boundary crossings—like killings, maiming, or
and lifetime enslaving—for which due compensation is simply
impossible.

If some injuries are not compensable, they would not fall
under a policy of being allowed as long as compensation is paid.
(Rather, they would be allowed provided compensation was paid, but
since the compensation could not be paid by anyone, in effect they
would be unallowed.) (65–6)

However, Nozick focuses on two factors that severely complicate the
task of identifying due compensation for boundary crossings. The
first is fear (65–71). Here is one way that fear complicates
the identification of due compensation. Suppose we treat the right
that each individual has not to have her forearm broken as a claim
protected by a liability rule. And suppose further that we know what
the due compensation is for having one’s forearm broken. On this
basis we decide to allow unconsented to forearm breaking as long as
the forearm breaker duly compensates the subject of his
ministrations. The effect of this will be to make many people fearful
of having their arms broken who will never receive compensation for
that fear because their arms will not in fact be
broken.[19] Or
if people are to be compensated simply for their fear,
individuals whose conduct induces fear may be required to make
compensation payments even though they never in fact break
forearms. These sorts of problems are mitigated if the right not to
have one’s forearm broken is treated as a claim
protected by a property right.

The second factor that complicates recourse to due compensation for
unconsented to boundary crossings is the fact that the best procedure
for identifying the due compensation for a crossing is to require
antecedent negotiation with and consent by the party who will be
subject to the crossing (63–65). The best way to identify the
due compensation for A for having her forearm broken
by B is to see what payment A will accept to
allow B to break her arm. However, this requires
the prohibition of the boundary crossing under discussion
unless the subject of the action agrees to it. When antecedent
negotiation between subject A and actor B is
feasible, the best route to due compensation for A (which is
required under the liability rule construal of A’s right)
consists in treating A’s right against B’s proposed
action as a claim that is protected by a property rule. Especially
since antecedent negotiation between subjects and actors is usually
feasible, even rights that are in themselves only protected by
liability rules are usually to be treated as boundaries that may not
without consent be crossed.

Nozick describes the task of identifying the compensation due
to A for undergoing B’s chosen action as the task of
identifying the just division of the benefits generated
by B’s action. B gains through his action; but
justice requires that he share those gains
with A—especially since the immediate effect
of B’s action is a loss for A. The just division of
the benefits is the division that A and B would
settle upon in conjunction with A’s agreement to be subject
to the action in question. And the best procedure for identifying what
terms would be settled upon is to require antecedent negotiation and
consent—when antecedent negotiation and consent is feasible.

We can now return to Nozick’s core argument against the anarchist’s
challenge. Nozick calls for a three-fold distinction among agencies
and individuals who operate outside of the dominant protective
association. At one end of the spectrum are outlaw agencies or rogue
individuals who either aim to perform actions that cross boundaries
or pose substantial risks of crossing boundaries through their
recklessness or negligence. The actions of such agencies or
individuals may simply be suppressed to protect the rights that they
threaten.[20]
At the other end of the spectrum are agencies or individuals who are
known to the dominant association to pursue rights protection in ways
that are not markedly more likely to violate the rights of the
association’s clients than the procedures of the association is
likely to violate rights. Given its own procedures, the association
cannot honestly proclaim that its clients have rights against the
activities of these well-behaved agencies and individuals. (But the
association may know that they are well-behaved precisely through its
monitoring of those agencies and individuals.) In the middle of the
spectrum are agencies and individuals whose procedures are not so
risky as to justify straight-forward prohibition but are risky enough
so that those whose rights are threatened seem to have some
rights-based justification for suppressing those procedures.

According to Nozick, there would be no good answer to the question
of how the dominant association should act toward agents in the middle
of the spectrum if the association had to choose between
straight-forward suppression and securing the voluntary consent of
those agents to cease or modify their procedures. But, fortunately, an
intermediate mode of action is available to the dominant association,
viz., crossing the boundaries that protect those unacceptably risky
procedures while duly compensating the subjects of those
crossings.

It might be objected that either you have the right to forbid these
people’s risky activities or you don’t. If you do, you needn’t
compensate the people for doing to them what you have a right to do;
and if you don’t … you ought simply to stop [the
forbidding]… . But the dilemma, “either you have a right
to forbid it so that you needn’t compensate, or you don’t have a right
to forbid it so you should stop,” is too short. It may be that
you do have a right to forbid an action but only provided you
compensate those to whom it is forbidden. (83)

Nozick’s crucial move against the anarchist depends, then, on
construing the claims to non-interference of agents who engage in
actions that pose moderate risk to others’ rights as claims that are
merely protected by liability rules. Since, they are merely protected
by liability rules, those actions may be interfered with as long as
those subject to that interference are duly compensated.

Why, though, do the rights of those who pose moderate risk to
others’ rights not acquire the force of claims protected by property
rules? With respect to the fear factor, Nozick seems simply to assume
that the dominant association’s measures to suppress or control the
activities of those moderately dangerous (but non-outlaw) agencies
and individuals generate no complicating fear. With respect to the
division of benefits factor, Nozick seems to hold that those who
suppress (or mitigate) risky conduct by others should not be thought
of as thereby benefiting. Presumably a mark of this is that
it would be illicit for a previously fastidious independent
protective agency to shift to moderately risky procedures against the
dominant association’s clients in order to sell to the association
its return to fastidious
conduct.[21]
Thus, there is no need for antecedent
negotiation to determine the just division of the benefits generated
by the dominant association’s suppression or mitigation of the
moderately risky procedures of independent agencies or
individuals. Everything else being equal, it seems to follow that
moderately risky procedures by those independents may be suppressed
or mitigated without any compensation. (Rather, it seems
that they can be suppressed or mitigated with due compensation; but
the due compensation is no compensation.)

However, according to Nozick, everything else is not quite
equal. Some of these independents (or agencies) may have adopted
moderately risky procedures because they (or their clients) cannot
afford more fastidious procedures. According to Nozick, if we
had “a theory of disadvantage” (82), it would tell us that
these independents (or these clients) will be disadvantaged by the
dominant association’s interference with those moderately risky
procedures. They will be disadvantaged even though they are only
engaged in (or subscribing to) procedures that might infringe on
others’ rights. So, Nozick concludes, the suppression or mitigation of
the procedures engaged in (or subscribed to) by these individuals must
be accompanied by compensation for disadvantages imposed upon
them. Thus, we arrive at Nozick’s principle of
compensation:

those who are disadvantaged by being forbidden to do actions
that only might harm others must be compensated for these
disadvantages foisted upon them in order to provide security for the
others. (82–3)

This principle of compensation explains (or expresses)
the justification for the dominant association stepping in to suppress
or exercise mitigating control over the procedures of moderately risky
(but non-outlaw) agencies and individuals.

How does the principle of compensation get us to the minimal state?
According to Nozick, through its enforced oversight over others’
provision of protective services the association exercises enough of a
monopoly over the provision of those services to become
an ultra-minimal state. However, under the principle of
compensation, the dominant association’s interference with moderately
risky independents who are disadvantaged by this interference will be
permissible only if the association compensates those independents for
those disadvantages. Nozick envisions that compensation naturally
taking the form of the ultra-minimal state providing free or
subsidized protective services to those who will (otherwise) be
disadvantaged by its interferences. When the ultra-minimal state
secures the permissibility of its monopoly oversight by providing free
or subsidized protection to those who are (otherwise) disadvantaged by
its oversight it becomes a (legitimate) minimal state.

In asserting the permissibility of its enforced oversight, the
dominant association does not maintain that it has some unique claim
to suppress or control moderately risky agencies or
individuals. Nevertheless, by being the dominant association, it alone
is in position to act under the aegis of the principle of compensation
(108–110). Nozick’s minimal state provides free or subsidized
protective services to some parties. To pay for those free or
subsidized services, the minimal state charges its paying customers
more than it otherwise would. This may appear to be enforced
redistribution; but it is not. For, the additional charges incurred by
the minimal state’s paying clients simply are payments that are needed
to fund compensation that must be paid if the oversight that is
imposed on behalf of the clients’ security is to be permissible.

Nozick provides an important second argument on behalf of the
dominant association’s monopolistic oversight and constraint of other
protective agencies. This argument focuses on procedural
rights. Do the clients of the dominant association have (natural)
procedural rights against having moderately risky protective measures
directed against them? Nozick recognizes that it seems implausible to
affirm procedural rights in the state of nature. Yet he seeks to back
into such rights by starting with the proposition that even in the
state of nature C acts wrongly and impermissibly
toward D if C extracts restitution payments
from D or punishes D without knowing (or having a
well-justified belief) that D has violated C’s
rights; C acts wrongly and impermissibly even if D
has in fact violated those rights and the restitution or punishment
imposed by C is appropriate for that violation (106). Nozick
takes the wrongness and impermissibility of C’s
epistemically ill-grounded reaction to justify the prohibition
of C’s action against the guilty D. So D
has at least the equivalent of a procedural right
against C’s epistemically ill-grounded conduct (107). The
dominant association can permissibly rise to statehood by enforcing
its clients’ (equivalent of) procedural rights against those
moderately risky
competitors.[22]
The problem here seems to be that, if
saying that C’s ill-grounded reaction is
“impermissible” is merely another way of saying that it
is morally defective, one cannot infer from its impermissibility that
it may be prohibited. It seems that one can only infer
that C’s reaction may be prohibited if that reaction is
impermissible in the much stronger sense of being (equivalent to)
rights-violating. But one cannot assert that the reaction is
impermissible in this stronger sense unless one already assumes what
Nozick is purporting to show, viz., that there is a procedural right
(or something equivalent to such a right) that the ill-grounded
reaction violates.

We have already noted that Nozick’s minimal state differs from
common depictions of the minimal state because it does not impose
taxation to finance its services. In many other ways as well, it is
more like a business enterprise than a state. There are no rulers, no
legislative body, no political elections, no contending parties and
citizens. There is no sovereignty and no state territory. There are,
instead, executives, a board of directors, shareholders, clients, and
the assets of the enterprise. But the fly in the enterprise ointment
is the absence of competitive market constraints on the price or the
quality of the services offered by this monopoly. (If there is enough
market competition to keep prices of protective services down and
their quality up, there will be too much competition for this
enterprise to count as a state.) It appears that the only other way to
keep this monopoly in check would be through some sort of
political-constitutional constraints. However, Nozick makes no
mention of these. Of course, a protective association in pursuit of
customers might commit itself to constitution-like
constraints on its decisions and conduct as a way of reassuring
potential clients. (Mack 2018 110-124)

It is striking that a more direct route to a more conventional
minimal state—i.e., one that would fund the production of rights
protection through taxes—is available to Nozick. (Mack 2011) That
route is opened by his shift to the liability rule construal of
rights. On that construal each individual’s right to her financial
assets is at base merely a right to receive due compensation for the
seizure of those assets. So, if the dominant association taxes
individuals—seizes some of their financial assets without their
consent—but provides compensating benefits for each of those
individuals in the form of protective services, the association’s
conduct will be perfectly permissible. On Nozick’s view, such
non-negotiated accompanying compensation will be inferior to
antecedently negotiated terms of exchange if such prior
negotiation would have been feasible. However, Nozick could have
advanced the common argument that such prior negotiation of payment
for protective services would not be feasible.

That argument turns on the special public good feature of a system
of rights protection, viz., that, if such a good is produced, if will
be difficult to exclude individuals who do not voluntarily pay for
that system from enjoying (many of) the benefits generated by the
system. Perhaps the police whom I have not voluntarily paid won’t
respond to my calls for assistance. But they will respond to
the calls of my paying neighbors and, as a result, I will enjoy a
lower level of neighborhood crime. Accordingly, antecedent
negotiations about payment for protection will not be feasible
because a significant number of individuals would decline to offer
payment in the hope that they would to get (most of) the benefits of
the production of those services even if they do not contract for
them.[23]
Hence, assuming that the taxation to fund the public good of rights
protection is not itself feared, the rights to the financial assets
that are seized in that taxation remain claims that are merely
protected by liability rules. According to his argument, since the provision of that protection
duly compensates for the seizures, the imposition of those taxes is
permissible.[24]

One strand that runs throughout ASU is Nozick’s interest
in invisible-hand explanations—explanations of complex orders
like the adjustment of supply and demand in market economies that do
not appeal to anyone’s intention to bring about the explained order
(18–22). For Nozick, part of the charm of his story about the
emergence of the minimal state is that it is an invisible hand
story. The dominant association backs into being a state without
really trying (to be a state) (118–119). This contrasts with the
visible hand quality of social contract explanations or justifications
of the state. Of course, no actual minimal state is explained
or justified by Nozick’s invisible hand explanation. This is no
philosophical problem because there is no actual minimal state that
Nozick sets out to justify.

However, Nozick does seem to be committed to the view that the
legitimacy of any actual minimal state that might arise will depend
upon its having arisen through permissible, rights respecting
activities; and this seems to be a problem. Consider a minimal state
that comes into existence when some aggressive individuals seize
control of a powerful coercive apparatus that has been built up
through many years of murder and plunder but then immediately undergo
conversion into conscientious libertarians. As quickly as they can
those individuals redirect the coercive power at their disposal from
aggressions against life, liberty, and property to the suppression of
rights violations by non-violating means. It seems that our judgment
about the legitimacy of this minimal state should turn at least
primarily on how it now conducts itself and not on the permissibility
of the actions that lead to its existence (Paul 1979).

A new angle on this topic is presented in Ralf Bader’s ingenious explanation of how Nozick’s account of the way in which minimal states would arise without violating rights supports a demand in justice that actual more-than-minimal states be transformed into minimal states. (Bader 2017) The key is Bader’s idea that the rectification of economic injustice and the rectification of (what might be called) political justice are isomorphic. Economic rectification requires the transition from an array of holdings that is at least in part the product of rights violations to the array of holdings that would have arisen had holdings arisen justly. In parallel fashion, political rectification requires the transition from political institutions that are at least in part the product of rights violations to the political institutions that would have arisen had political institutions arisen justly. Nozick’s counterfactual account of the minimal state reveals that this is sort of political institution into which actual more-than-minimal states must, as a matter of justice, be transformed.

While the core official purpose of Part I of ASU is the
defense of the minimal state against the anarchist critique, the core
official purpose of Part II of ASU, is to argue that
“no more extensive state can be justified” (xi). In
chapter 8 of Part II, “Equality, Envy, Exploitation,
Etc.”, Nozick seeks to counter the force of a series of
considerations that are invoked on behalf of a more extensive
state. These include equality, equal opportunity, meaningful work,
workers’ control, and exploitation. In chapter 9 of part II,
“Demoktesis”, he constructs an invisible hand account of
the rise of an unconstrained democratic state. The intention seems to
be to undercut the appeal of such a state by showing what sorts of
unattractive, albeit permissible, actions individuals would have to
engage in to arrive at such a state. Nozick needs, then, to explain
why a hypothetical invisible hand explanation of the minimal state
much more legitimates it than a hypothetical invisible hand
explanation of the unconstrained democratic state legitimates it
(292–294).

Still, by far the most philosophically important chapter of Part II
is chapter 7, “Distributive Justice” in which Nozick seeks
to counter the view that a more extensive state is justified as an
instrument of distributive justice. This chapter has been the subject
of the bulk of the philosophical commentary on ASU. In this
chapter, Nozick sketches his “historical entitlement”
conception of justice in holdings, provides a number of quite general
arguments against all alternative conceptions of justice in holdings,
endorses a Lockean Proviso that adds a bit of complexity to the
entitlement doctrine, and provides a powerful critique of Rawls’ case
in A Theory of Justice for his strongly redistributive
“difference principle”. This section focuses on the first
three of these topics.

Nozick’s approach to justice in holdings has to be seen as emerging
from his broad construal of the implications of the Rawlsian-Nozickean
critique of utilitarianism. Whereas Rawls concludes that a due respect
for the separateness of persons precludes imposing losses on
individuals for the sake of the general welfare, Nozick concludes that
it precludes imposing losses upon individuals for the sake
of any conception of the overall social good—including
deeply distribution-sensitive conceptions. The justice of a given
individual’s possession of and discretionary control over certain
economic goods cannot be a function of that possession and control
contributing to the general welfare or to any other overall
social end-state or pattern. All such consequentialist assessments of
holdings are ruled out of court. So, if there is any acceptable
account of the justice of individual holdings, it must be a
backward-looking account. The justification must depend upon how the
holdings in question have arisen.

If the holding came about by permissible and title-conferring modes
of action, the possessor will be entitled to it. If the holding came
about by modes of action that are not permissible (or are permissible
but not title-conferring) the possessor will not be entitled to
it. Thus, entitlements are historical. Individual A will have
an entitlement to holding H if and only if A’s
possession of H has the right sort of history. This stance
accords with the common-sense intuition that an agent’s acquiring
economically valuable objects in certain ways—e.g., creating
those objects out of unowned natural materials—generates
entitlements for that agent over those objects while an agent’s
acquiring objects in other ways—e.g., seizing those objects from
another who has created them out of unowned natural
materials—does not generate entitlements for that agent over
those objects. A distribution of holdings across individuals will be
just insofar as the particular holdings that constitute that
distribution are just—rather than the justice of any particular
individual’s holding depending on the holistic justice of the
distribution of which it is a part.

Just acquisition takes the form of just initial acquisition, just
transfer, or just rectification of an unjust taking. An existing
holding will be just if it arises from an act of just initial
acquisition or an act of just initial acquisition followed by one or
more acts of just transfer, or an act of just rectification that
counteracts an unjust taking of a just holding. An adequate theory of
justice in holdings will specify the processes that constitute just
initial acquisitions, just transfers, and just acts of
rectification. Nozick tells us that each of these principles is a
“complicated truth” (150) that he will not attempt to
formulate. Thus, we never get statements from Nozick of what specific
initial acquisition or transfer or rectification processes that result
in agent C’s possession of H generate or convey
to C an entitlement over H. Nozick never
directly seeks to explain why certain specific processes—certain
specific means of acquisition—have the power to generate or
convey entitlements. He never addresses the ways in which historical contingency and convention may select (from among morally eligible procedures) the specific procedures that count as entitlement conferring within a given society. (Mack 2010 and Bryan 2017)

Nozick’s lack of specification and explanation has mislead
commentators such as Cohen into thinking that, for Nozick, any not
unjust process that results in C’s possession
of H generates or conveys an entitlement for C
over H. “’[J]ust steps, for Nozick, are human
actions that are free of injustice…” (Cohen 1995:
39). Consider Cohen’s example of D’s rolling pin accidentally
rolling downhill from D’s kitchen into C’s kitchen
where C innocently mistakes it for his long-lost rolling
pin. Cohen thinks that, since nothing within this transfer process is
unjust, Nozick is committed to the transfer being just and entitlement
conveying and, hence, is committed to the implausible conclusion
that C would acquire a just claim to the rolling
pin. Although this sort of criticism rests on the mistaken idea that,
for Nozick, just processes are simply not unjust processes, it does
highlight how little Nozick does offer in the way of a positive
account of the nature and power of entitlement generating or conveying
processes.

Nozick thinks we are pushed to adopt some set of
historical entitlement principles by the dethronement of
consequentialist doctrines of justice in holdings; and he then
implicitly relies on his readers’ intuitions about what the content of
those principles will be. Such intuitions will, e.g., count against
the thought that one can engage in the initial just acquisition
of H by wanting H or by intensely focusing one’s
attention on H and will support the thought that some sort of
physical engagement with unowned materials is necessary for acquiring
an entitlement to them. Similarly, such intuitions will count against
the thought that an accidental transfer of a rolling pin
from D’s kitchen to C’s kitchen will convey the
right to the pin from D to C and will support the
thought that such a conveyance requires some sort of informed and
voluntary interaction between D and C.

Nozick discerns two types of principles concerning justice in
holdings other than the historical entitlement type. These are
end-state principles and patterned principles. To a considerable
extent, Nozick’s argument on behalf of his historical entitlement
approach consists in his critiques of end-state and patterned
doctrines. End-state principles hold that justice in the distribution
of income (or economically valuable goods) is a matter of some
arithmetical feature of one of the available distributions. Consider
three available distributions of income among three individuals (or
among three positions to be occupied by individuals):

A

B

C

Distribution D1

12

10

9

Distribution D2

4

22

13

Distribution D3

20

8

8

A utilitarian (or income maximization) theory will
select D2 as the just distribution on the ground
that it has the greatest total income. An egalitarian theory will
select D1 as the just distribution on the ground
that it is the most equal distribution. Rawls’ difference principle
will select D1 on the distinct ground that within
it the lowest payoff is greater than the lowest payoff within any
other available distribution. What makes each of these doctrines an
end-state view is their shared conviction that the information
provided by this sort of matrix is sufficient for determining which of
the available distributions is the just one.

According to Nozick, a major problem for all end-state doctrines is
precisely the falsity of this shared conviction. For surely
information that cannot appear within such a matrix is essential to a
sensible judgment about which of these available distributions is
just. Consider, e.g., the following information.
D2 is the distribution of income that obtains when
A is enslaved to B who employs C as his
effective overseer. D1 is the distribution that
obtains when A is partially emancipated and is only subject
to slavery-like exploitation by B and C one week per
month. And D3 is the distribution that obtains
when A is entirely emancipated. Given the obvious relevance
of this sort of information for any responsible selection of one of
these distributions as the just one, any doctrine that asserts or
presumes that the information available in the matrix suffices has to
be deeply flawed.

Patterned theories of distributive justice escape this problem
because they hold that the just distribution is the available
distribution in which the income accorded to individuals most tracks
some feature of those individuals—e.g., their moral desert or
their economic effort—and the incidence of that feature is not
reported in that income matrix. Hence, one cannot say which of the
distributions presented in the above table is to be selected until one
also knows what the distribution of the to-be-tracked feature is
among A, B, and C. In addition, plausible
patterned doctrines will focus on features of individuals that are
historical—e.g., how much moral desert particular individuals
have amassed or how much economic effort they have evinced. So,
plausible patterned doctrines will be historical. However, unlike
historical entitlement doctrines, historical patterned theories will
not determine the justice of the particular holdings of individuals on
the basis of whether those individuals acquired those holdings through
entitlement generating or conveying processes.

Nozick offers a series of arguments each of which is supposed to
discredit all (non-trivial) end-state and patterned principles. (At
this point, Nozick employs the term “patterned” to refer
both to end-state principles and track-the-feature principles.) We
must focus here on two of those arguments. The first, most famous,
and most misunderstood of these arguments appears in the section
of ASU that is entitled “How Liberty Upsets
Patterns” (160–164). The second appears in the section
entitled “Redistribution and Property Rights”
(167–174).

In “How Liberty Upsets Patterns”, Nozick asks each of
his readers to envision an income distribution that accords with her
favorite patterning principle. Then Nozick points out that more or
less as soon as that pattern P1 is instituted,
individuals will engage in highly innocuous dispositions of what has
been assigned to them in the name of justice that will engender a
different pattern P2. For instance, a million
fans will each pay Wilt Chamberlain 25 cents to see him play
basketball. However, this new pattern P2 will
almost certainly be convertible through fine-tuned social engineering
into another pattern P3 that better realizes the
favored patterning principle. Imagine, e.g., that the $250,000 that
is concentrated in Wilt’s hands within P2 can be
effectively redistributed downward whereas it could not be
effectively redistributed downward when it was still spread out among
Wilt’s moderately prosperous fans. Thus, if we continue to assess
distributions on the basis of the selected patterning principle, we
will have to declare P2 to be unjust and maintain
that justice requires its conversion
into P3. And, more or less as soon
as P3 is instituted, individuals will engage in
highly innocuous dispositions of what has just been assigned to them
in the name of renewed justice that will engender a different
pattern P4 … and so on. Nozick then
identified two problems with this continued application of the
favored patterned rule.

This first problem is that, if (as stipulated) the holdings of
individuals under P1 were just and if (as
stipulated) interactions that converted P1
into P2 were all just, it is difficult to see
how P2 can become infected with injustice. Of
course, P2 (almost certainly) must be judged to be
unjust if one continues to assess the justice of distributions on the
basis of the adopted patterned principle. But it seems reasonable to
demand an explanation of how that asserted injustice could
have entered P2 given the justice
of P1 and of the processes through
which P2 emerges
from P1.

By what process could
such a transfer among two persons give rise to a legitimate claim of
distributive justice on a portion of what was transferred, by a third
party who has no claim of justice on any holding of the
others before the transfer? (161–2)

It does not seem to be a sufficient answer to say that
injustice must have entered in P2 because, after
all, when we apply the operative distributive principle
to P2 we reach the conclusion
that P2 is unjust.

The second problem is that the endorsement of redistributive
interference with the outcomes of persons’ innocuous deployments of
their assigned holdings seems to be inconsistent with the justice of
that assignment of holdings. For surely one may dispose as one chooses
of one’s just holdings as long as one does not unjustly impinge upon
others and their just holdings.

If the people were entitled to dispose of the resources to which they
were entitled (under D1), didn’t this include
their being entitled to give it to, or exchange it with Wilt
Chamberlain? (161)

To endorse redistributive interference with the
outcomes of persons’ non-impinging dispositions of the holdings that
have been assigned to them seems to rescind the justice of that
assignment of holdings.

Patterned distributional principles do not give people what
entitlement principles do, only better distributed. They do not give
the right to choose what to do with what one has… (167)

This aspect of Nozick’s critique is nicely summed up
in Hillel Steiner’s quip that patterned theories of justice
“create rights to interfere with the rights that they have
created” (Steiner 1977:
43).[25]

It is important to note that the problems that Nozick’s identifies
are problems internal to the ongoing application of any
patterned principle. Nozick should not be read as making the
question-begging external argument that, since conforming to liberty
is the standard by which theories of justice in holdings should be
assessed and patterned theories often call for interferences with
liberty, patterned theories must be dismissed. Nevertheless, Nozick
bears considerable responsibility for this reading when he
says,

The general point… is that no end-state principle or
distributional patterned principle of justice can be continually
realized without continuous interference with people’s
lives. (163)

Nor should Nozick be pictured as holding that the
problem with patterned theories is that they would forbid any
departure from a P1 that is instituted because, at
the time it is instituted, it is the available distribution that best
realizes some favored pattern. Nozick is not charging patterning
theorists with forbidding the exchange between Wilt and his fans.

An important response to Nozick’s “How Liberty Upsets
Patterns” arguments is that they rely upon a mistaken picture of
the patterned theorist’s program. According to this response, Nozick
represents the patterned theorist as aiming at the daily (or weekly or
monthly) fullest available realization of her favorite pattern. On
this representation, at the end of each day (or week or month) the
advocate of, e.g., the Rawlsian difference principle will determine
whether the existing distribution can be transformed into one that
provides a higher income for those in the lowest income positions for
the next day (or week or month); if such a transformation is available
then (on this representation) the difference principle advocate will
require it as a matter of justice. Hence, the continuous interference
in the name of justice with the results of people acting as they
choose with their purported just holdings. However, the advocate of
the difference principle will maintain that this principle guides the
design of the basic institutional structure of society; it provides
the basic structure with the aim of raising the lifetime income of the
representative lowest income individual as much as possible. What is
assigned to individuals as a matter of distributive justice is a
lifetime stream of income that arises through some combination of
permitted and protected modes of income acquisition, tax and
regulatory structures, and tax-funded assistance. Wilt does not have a
claim in justice to his holdings on the day before the fans transfer
$250,000 to him or to his holdings on the following day. He has a
claim in justice to the lifetime income that will accrue to him when a
basic structure is in place which, through enabling income
acquisition, taxing, regulating, and subsidizing income yields
(something like) the highest possible lifetime income for the least
advantaged. That claim in justice is not violated when the IRS seizes,
say, 70% of his $250,000 windfall.

Hence, in his most direct response to Nozick’s challenge, Rawls
declares,

There are no unannounced and unpredictable interferences
with citizens’ expectations and acquisitions. Entitlements are earned,
and honored as the public system declares. Taxes and
restrictions are all in principle foreseeable, and holdings
are acquired on the known condition that certain transfers
and redistributions will be made. (Rawls 1993: 283, emphasis
added)

It would seem, however, that Nozick can insist that any ongoing
attempt to maximize lifetime incomes for the worst off (or to sustain
any other non-trivial pattern) will require unannounced and
unpredictable interferences with citizens’ expectations and
acquisitions. For, as economic preferences, needs, opportunities,
beliefs, insights, and capacities change in unannounced and
unpredictable ways, the public system will similarly have to change if
it is going to continue to aim at maximizing lifetime incomes for the
worst off. And as further unannounced and unpredictable changes occur,
the basic structure will again have to be changed in unannounced and
unpredictable ways. As Rawls himself says, “… even in a
well-ordered society, adjustments in the basic structure are always
necessary” (Rawls 1993: 284, Mack 2018: 124-129). The institution of those
adjustments will almost certainly have to dishonor some of the
entitlements proclaimed under the previous public system and treat
some of people’s previously earned holdings to previously unannounced
and unpredictable transfers and redistributions (Mack 2002a,
85–91).

In “Redistribution and Property Rights” Nozick offers a
more external argument against all patterned theories of justice. The
argument is that the institutional operation of any (non-trivial)
patterned doctrine amounts to the institution of partial ownership of
some people by other people.

Whether it is done through taxation on wages or on wages over a
certain amount, or through seizure of profits, or through there being
a big social pot so that it’s not clear what’s coming from where and
what’s going where, patterned principles of distributive justice
involve appropriating the actions of other persons. Seizing the
results of someone’s labor is equivalent to seizing hours from him and
directing him to carry on various activities… . This process
… makes [those who carry it out] a part-owner of you; it gives
them a property right in you. Just as having such partial control and
power of decision, by right, over an animal or inanimate object would
be to have a property right in it. (172)

Nozick distances himself from a Lockean labor-mixing account of
just initial holdings by jokingly asking whether one comes to own the
ocean by pouring one’s can of tomato juice into it (175). And, in the
passage above, he carefully avoids saying that the operation of any
patterned doctrine infringes upon one’s self-ownership by way of
appropriating one’s labor.

Nevertheless, the argument in this passage seems to be quite
Lockean in its basic structure. Rather than focusing on particular
expropriations of this or that labor infused object, the argument
attends to the configuration of control over individuals’ actions,
time, and decisions that the institution of any (non-trivial)
distributive pattern will require. According to Nozick, such a
configuration of control wrongly treats the individuals who are
subject to it without their consent as though they are in part the
property of those who establish and exercise that control. Note that
even here Nozick does not seem to be proposing specific content for
the principles of just initial acquisition and just transfer. Rather,
the goal is to provide a general vindication of the historical
entitlement approach by undercutting the end-state and patterned
approaches.

Nozick follows Locke in adopting a version of the claim that an
individual will have a complaint in justice against otherwise
perfectly just acquisitions by others if those acquisitions do not
leave that individual with “enough, and as good”
(174–182). Although Nozick’s discussion of his Lockean proviso
is somewhat murky, we can identify three important features of that
proviso doctrine.

First, whether an individual has a complaint under Nozick’s Lockean
proviso will not be a matter of whether too little natural material
has been left in common by others or too little material has been left
for that individual to initially acquire. Rather, that individual will
have a just complaint against others’ acquisitions if and only if
those acquisitions leave her on net worse off in terms of utility or
welfare. The individual will have no just complaint even if her
utility or welfare is diminished by a decrease in what remains in
common or a decrease in what remains available for her initial
acquisition as long as she is duly compensated in terms of utility or
welfare by other effects of the acquisitive actions of
others. The claim at the core of Nozick’s “enough, and as good” proviso is only protected by
a liability rule.

Second, in his main discussion of it, Nozick maintains that this
proviso is readily satisfied in free market
economies.[26]
This is in part due to the strong tendency of the rising tide of such
economies to raise up all those who are willing to swim with it
(177). It is also in part due to the low baseline set by the
proviso. Nozick never carefully spells out that baseline. But it must
be something like how well off the individual under consideration
would have been had all natural stuff remained in the common or,
perhaps, how well off that individual would be (over his lifetime)
were all natural stuff (or even all owned stuff) now returned to the
common.

Third, the proviso adds “an additional bit of complexity
into the structure of the entitlement theory” (174). It
specifies a way in which things could go especially badly for an
individual even if the acquisitions of others are entirely in accord
with the principles of justice in acquisition and it asserts that
individuals would have a complaint in justice should things go that
badly for them in that way. For Nozick, the primary case for the
justice of any holding continues to turn on its having arisen through
processes that accord with the principles of just initial acquisition,
just transfer, and (if relevant) just rectification. (This is why it
is such a serious problem that Nozick never spells out those
principles and never explains why acquisition in accordance with them
has the power to engender or convey entitlements.) For Nozick, even if
the proviso is violated, those who have acquired justly do not have to
surrender their holdings—albeit they need to provide
compensation to those whose situations are on net worsened by the
existing system of holdings.[27]

Nozick recognizes that even in relatively free societies the
historical processes that have yielded existing holdings have been
shot through with injustices. The history of almost all existing
holdings includes lots of appropriation by way of murder, plunder,
enslavement, fraudulent dealings, and other illicit coercive
transfers (usually on behalf of the rich and powerful). We do not
need a delicately worked out theory of rectification in order to
say that, if A has grabbed B’s goat yesterday, he
can be required to return it to B today. But we do need a
highly elaborate theory to inform us about what rectification
payments (if any) should now be required of whom on behalf of who
else because of injustices performed 20 or 50 or 200 years ago.
Presumably any acceptable doctrine will require that only current
victims of past injustices have just claims to rectification payments
and that they only have just claims against current beneficiaries of
those past injustices. Perhaps, then, bygones should be treated as
bygones when we lack the information that a well-developed
doctrine of rectification would require us to have to justly rectify long past injustices.[28]

Nozick closes chapter 7 with two thoughts concerning
rectification. The first is that proper rectification may have to take
the form of rough and ready payments to classes of people whose
members are likely to be worse off than they otherwise would be
because of historical injustices—payments that would be funded
by taxes upon classes of people whose members are likely to be better
off than they otherwise would be because of those historical
injustices. The second is that some end-state principle might come
into play as a guide for these required payments—albeit
“it may well be implausible” (231) to select the
difference principle as this guide.

The official purpose of Part III of ASU,
“Utopia”, is to show that the minimal state is not merely
legitimate and just; it is also inspiring. This purpose is advanced by
sketching a framework for utopia that is inspiring and noting that
this framework is highly akin to—Nozick actually says
“equivalent to” (333)—the minimal state. Yet Nozick
also says that the framework might not have any “central
authority” (329). Still, the framework is akin to the minimal
state because it is an institutional structure that enforces peaceful
co-existence among voluntarily formed communities. It protects the
independence of such communities and their freedom to recruit members
and also protects the liberty of individuals to enter and exit
communities as they respectively choose. Although Nozick is not
explicit about this, we have to presume that the framework enforces
the same norms of personal freedom, property, and contractual
compliance that the minimal state enforces except insofar as
individuals voluntarily relinquish such rights within the communities
they enter.

The framework is inspiring because of the way it contributes to
persons’ identification of and participation in communities (and other
networks of relationships) through which they will find meaning and
well-being. It is inspiring to anyone who appreciates how little each
of us knows about what sorts of communities best suit human beings in
all their depth and diversity and how much the operation of the
framework assists individuals in their discovery of and engagement in
communities that enhance their respective well-being. Moreover, many
persons may value the framework not merely for the way it enhances
their own good but, also, for the ways in which it allows them to
participate vicariously in others’ achievement of their different
modes of flourishing (Lomasky 2002).

The framework is—or, more precisely, sustains—a
discovery procedure. Under the protective umbrella of the framework,
individuals are presented with and can try out diverse communities
while communities themselves arise and modify themselves in their
competitive search to sustain, improve, or increase their
membership. A wide range of communities will continually arise out of
and in response to the evolving perceptions that diverse individuals
will have about what modes of sociality will best suit them and will
best attract welcome partners. Communities will survive and perhaps
expand or be imitated insofar as they actually embody modes of
relationship that serve well their actual or prospective membership or
insofar as they successfully refine their offerings in the market
place of communities. The framework also insures that those who are
already confident that they know what sort of community is best for
them will be free to form those communities by voluntary subscription
and, thereby, to manifest their actual value (or disvalue) to
themselves and to other seekers of well-being.

Part of Nozick’s sub-text here is a message to socialist utopians
that nothing in the framework (or the minimal state) precludes their
non-coercive pursuit of their ideal communities. How, therefore, can
socialists object to the framework (or the minimal state)? This
generalizes Nozick’s earlier claims in ASU that that
advocates of meaningful work and workers’ control of productive
enterprises ought not to be hostile to the minimal state since the
minimal state is fully tolerant of non-coercive endeavors to establish
such conditions (246–253).

In a short essay in Reason magazine published four years
after ASU, Nozick asked, “Who Would Choose
Socialism?” (Nozick 1978). More precisely, his question was:
What percent of the adult population would choose “to
participate in socialist interpersonal relations of equality and
community” were they in position to choose between “a
reasonably attractive socialist option and also a reasonably
attractive non-socialist one?” (Nozick 1978: 277). Nozick takes
the choice available to Israelis between membership and non-membership
in kibbutzim to be a good instance of a choice between such options
and notes that around six percent of the adult population of Israel in
the 1970s had chosen the socialist option. He speculates that
socialists are at least “tempted” to be imperialists
precisely because they sense that there will be too few volunteers
(Nozick 1978: 279).

The discovery procedure that the framework sustains is a version of
Millian experiments in living—albeit it is a version that places
much more emphasis on the role of a marketplace of communities in
providing individuals with experimental options. This discovery
procedure (like Millian experiments in living) is, of course, a
Hayekian invisible hand process. Given the enormous diversity among
individuals, we do not know what one form of community would be
best.

The idea that there is one best composite answer to all of these
questions [about what features utopia has], one best society for
everyone to live in, seems to me to be an incredible one. (And the
idea that, if there is one, we now know enough to describe it is even
more incredible.) (311)

Nor do we know what distinct modes of community would be best for
distinct types of persons. Thus, we cannot design an inclusive utopia;
nor can we design an array of mini-utopia such that some significantly
fulfilling community will be available to everyone—or even to
most.

It is helpful to imagine cavemen sitting together to think up what,
for all time, will be the best possible society and then setting out
to institute it. Do none of the reasons that make you smile at this
apply to us? (313–314)

Given our ignorance, the best way to realize utopia—almost
certainly many distinct utopia—is through the discovery
procedure that the framework sustains. (We should note, however, an
implicit, somewhat puzzling, and wholly unnecessary presupposition of
Nozick’s discussion, viz, that individuals with utopian aspirations
will generally seek out communities that are made up of other
individuals like themselves. The suggestion is that chosen communities
will be internally homogeneous with heterogeneity existing only across
these communities.)

The role of the framework in sustaining a discovery procedure
brings us to the second main purpose of “Utopia”. This is
the provision of an independent vindication of the minimal
state—one that specifically does not depend on “the moral
arguments for individual liberty” (309 footnote*) offered in Parts I
and II of Anarchy, State, and Utopia. Although the activities
of the framework are described in terms of protecting the rights that
are affirmed in early parts of the book, the utopian advocacy of the
framework does not rely upon the validity of those rights. Rather,
that advocacy turns on a general endorsement of utopian aspiration
combined with the core epistemic claim that, given our ignorance, the
only sensible route to utopia is the discovery procedure that the
framework sustains.

There is, however, an apparent problem with Nozick’s independence
claim. Nozick distinguishes among three sorts of utopians. There are
“existential utopians” who have a particular utopia in
mind for themselves and others who will be drawn to it but have no
problem with yet others being drawn to different utopia. There are
“missionary utopians” who hope “to persuade or
convince everyone to live in one particular kind of community, but
will not force them to do so”. And there are
“imperialistic utopians” who countenance “the
forcing of everyone into one pattern of community”
(319–320). While existential utopians will embrace the
framework and missionary utopians will (less heartily) support it,
imperialistic “will oppose the framework as long as some others
do not agree with them” (320). Nozick’s response to the
imperialist is to say “Well you can’t satisfy everyone,
especially if there are those who will be dissatisfied unless not
everybody is satisfied” (320). The suggestion—never
explicitly stated by Nozick—is that the imperialist pursuit of
utopia is to be suppressed by the framework precisely because it
is impermissibly coercive. But, if so, the justification for
this crucial operation of the framework must appeal to some of
“the moral arguments for individual liberty” from which
Nozick wants his utopia argument to be independent.

However, Nozick may be able to escape from this problem by
emphasizing that imperialists are being excluded on epistemic rather
than moral grounds. The question is, on what procedures will
epistemically sensible utopians—utopians with a due appreciation
for the difficulties involved in identifying and instituting
utopia—converge? And the answer is, on the processes of
voluntary association and dissociation and adjustment that the
framework aims to sustain. Imperialist utopian coercion is simply not
part of the process that all utopians have reason to favor because of
its epistemic fecundity. Moreover, the operation of the framework does
not preclude the establishment—for some people or for
all—of the mode of community favored by any
utopian.

Since any particular community may be established within the
framework, it is compatible with all particular utopian visions, while
guaranteeing none. (320)

Any utopian who wants her (current) vision to be guaranteed by
being forced upon others has good epistemic reasons to shed that
desire.

Still, it might be maintained that the most informative discovery
procedure is one that embodies no-holds-barred competition among
communities. For surely we want to know which communities or
associations of communities, if any, will be capable of defending
themselves against the imperialists. Since it seems that the most
informative discovery procedure would not exclude imperialist
utopians, it seems that the real basis for the exclusion of
imperialists must be moral. Hence, it appears that their exclusion
does undercut Nozick’s goal of providing an independent vindication of
the minimal state.

However, this problem also may be just a matter of appearance.
After all, the framework proposed by Nozick does not exclude
imperialists in the sense of stipulating their non-existence. Rather,
one of the core roles of the framework is precisely to protect
non-imperialists and their voluntary modes of association and
dissociation from those epistemically short-sighted, albeit still
existing, imperialists. The operation of the framework should,
therefore, be seen as a two-level discovery procedure. On one level it
operates as Nozick explicitly describes—as a competitive market
place of communities serving individuals who are becoming more
informed about their taste for community. However, on another level,
the operation of the framework is a procedure through which
non-imperialist communities and non-imperialist individuals who do not
enter any utopian community discover how, if at all, they can
cooperate in maintaining and operating the framework so as to protect
themselves and their epistemic quest from the imperialists.